A Haphazard Constitutional Compromise

Summary: The constitutional declaration put forward by the Supreme Council of Armed Forces in Egypt is a complicated and problematic document that does not resolve the fundamental issues facing the transition process.

On March 30, 2011, Egypt’s 1971 constitution—born out of hopes for the rule of law and in place longer than any similar document in modern Egyptian history—met an undignified end. Its replacement, in the form of a constitutional declaration, was announced on Facebook by Egypt’s Supreme Council of the Armed Forces (SCAF), the country’s interim military leadership.

Almost two weeks earlier, on March 19, voters had approved eight amendments to the suspended 1971 constitution in a referendum—with the implication that the newly amended constitution would be returned to force. But faced with persistent demands by referendum opponents to scrap the entire document, the SCAF seized the middle ground by issuing this declaration of 63 articles—mostly selected from the 1971 document and including those clauses now amended by the referendum—to describe how Egypt would be governed during the provisional period as citizens wait for a new leadership to be elected and a new constitution to be written.

With significant procedural and substantive implications, the constitutional declaration is a complicated and problematic document. Egypt’s transition from authoritarian rule is not necessarily endangered, but a more inclusive and coherent approach from the SCAF would have given Egyptians greater confidence in this crucial and still very fragile process. Recent developments surrounding the declaration’s issuance indicate that:

The constitutional declaration comes after conflicting and confusing signals from the SCAF about the transitional process, and these procedural difficulties betray an improvised and opaque way to making fundamental decisions about Egypt’s future;

The SCAF followed an odd pattern of selecting clauses from the 1971 constitution to include in its declaration, and the result will be ambiguity in the operation of critical institutions and of constitutional protections during the transition period;

While some steps in the transition process have been identified, along with timetables, others remain unspecified.

Procedural Incoherence and Inconsistency

As it developed the constitutional declaration, the SCAF consulted some Egyptian leaders on an ad-hoc basis. The SCAF ignored calls to set up a “presidential council” or any formal means of bringing together various political forces to oversee the process. A “national dialogue” was finally initiated, but only after the constitutional declaration had already been written and was placed under the authority of Egypt’s civilian cabinet rather than the SCAF. The dialogue has therefore been unable to address constitutional issues.

Egyptians were not even told who had drafted the declaration; it was presented as a sort of gift by a patriotic military leadership dedicated to protecting Egypt and the principles of the revolution. And when criticism of the closed procedure arose, SCAF members expressed frustration and wounded pride that they did not receive the gratitude they thought they deserved.

The declaration process was not merely opaque—it was also confusing and even incoherent. After voters were asked on March 19 to approve amendments to the suspended 1971 constitution—which they did—they were then told the constitution was actually void and that the “amendments” would become part of a new constitutional declaration.

Among the amendments voters approved was the abrogation of Article 179, dealing with terrorism and national security. Thus, the referendum itself implied that only the people, acting through the referendum process, had the power to delete a constitutional provision. But when the declaration was announced on March 30, Egyptians found that scores of other articles not mentioned in the referendum were not included, meaning the SCAF—acting on its own and outside the process it had suggested was necessary—had effectively tossed them out.

In addition to the articles that voters had changed, most of the declaration’s remaining articles were copied verbatim from the document it was superseding. But not every clause is a precise replica—curiously, the constitutional declaration also tinkers with some provisions of the 1971 constitution in ways not identified in the referendum.

Some of these changes are substantively significant, such as to Article Five of the 1971 constitution dealing with political parties, while others maintain the same general idea as the original provision with only slight alterations, such as to Articles 86, 87, and 92 dealing with the People’s Assembly. Presumably, the SCAF only later realized it wanted to amend these clauses, but it did so without any additional explanation or justification.

Egyptians even found that one of the amendments they approved in the referendum—which involved the process for drafting the new constitution—was further amended by the SCAF. (The change allows the SCAF to instruct the parliament to elect the body that will draft the permanent constitution. This makes explicit that the newly seated parliament does not have to wait for later presidential elections to initiate the process.)

It is unlikely that Egyptians will ever receive coherent answers to these questions because they probably do not exist. The SCAF has showed firm fidelity to some principles (a rapid transition; quick return to civilian rule; a specific sequence of referendum, parliamentary elections, and presidential elections; and finally a new constitution) and a few strong preferences (maintaining order; rejecting any formal structures of consultation; and lifting some restrictions on organized political life). But nothing suggests that the SCAF had any clear idea on how to achieve these goals. To the contrary, this declaration shows a constantly changing and unpredictable process.

Substantive Confusion

The declaration kept some of Egypt’s basic characteristics as provided for in the opening articles of the 1971 constitution. The Arab Republic of Egypt is still the country’s official name, and Article Two of the constitution (which declares Islam as the state’s religion, Arabic as its official language, and the principles of the Islamic Sharia as its main source of legislation) appears unchanged as Article Two of the declaration.

However, the constitution’s Article Five—which deals with political activity and party formation—has been significantly amended as the declaration’s Article Four, although this change was not adopted in the referendum. The 1971 constitution, as amended in 2007, banned the pursuit of political activities or the formation political parties with a religious frame of reference or on a religious basis. But the declaration removes the broader and more vague “religious frame of reference” language (a term used by the Muslim Brotherhood to describe its own orientation), leaving only the narrower prohibition on activities or parties with a religious basis.

This difference benefits any political movement or party that wants to use religious language or references but also can plausibly deny it has a religious basis at its core. Indeed, a SCAF legal spokesman has suggested that the intention is to bar parties that restrict membership on a religious basis. Strangely, the change also comes after the referendum’s drafting committee decided it was not empowered to offer any amendment to Article Five because it felt unauthorized to deal with the ideological portions of the 1971 constitution.

The constitutional declaration also includes some odd elements from the 1971 constitution. Of all the provisions to preserve, few would have chosen the requirement that half of parliamentary deputies be “workers and peasants”—an ideological remnant of 1960s socialism that was becoming anachronistic even in 1971 and whose definitions are applied very broadly. Maintaining this provision means that those parties able to find candidates who fit these definitions will have a significant edge in the upcoming elections. Some political activists suspect that this may help parties and groups with pre-existing extensive electoral networks, such as former President Hosni Mubarak’s National Democratic Party (in whatever new form it takes) and the Muslim Brotherhood’s Freedom and Justice Party.

The declaration also keeps the Consultative Council (Majlis al-Shura), the upper house of the Egyptian parliament created in 1980 with few functions other than to serve as a check on the lower People’s Assembly in the unlikely event it began to show independence. And yet the declaration does not include the list of legislative areas that require the Consultative Council’s approval before the People’s Assembly can act, suggesting the Council has no binding power vis-à-vis the People’s Assembly.

Many of the 1971 constitution’s provisions on political freedoms remain in place while many of the more socialist provisions have been dropped, making the declaration a more classically liberal document than its predecessor, as Ellis Goldberg has noted. But it is not clear how these freedoms will be guaranteed.

The problem with the 1971 constitution was not its inability to name freedoms but in the weak provisions it created to enforce them. To the limited extent that those general freedoms had any viability under the 1971 constitution, it was due to the measured work of the country’s Supreme Constitutional Court, especially during the 1990s. Indeed, as Tamir Moustafa has argued, the court’s success in this regard ultimately led to the undermining of its work. Presumably, this court will now begin to hear claims based on the declaration. But will there even be time for a case to make its way to the court while the declaration is in force?

Indeed, by including many provisions from the 1971 constitution while excluding others, the declaration exhibits a split personality. Is it meant to provide only the bare essentials for the government to operate, or to act as a fuller constitutional document? And what is the line between these two goals? How did the drafters decide what to include and what to leave out?

Some provisions related to the two houses of parliament are included, for example, while many more are left unincorporated. The declaration drops virtually all details of parliamentary oversight of the cabinet as well as those governing the legislative role of parliament. While a few general provisions of the 1971 constitution concerning parliament remain—and while Egypt’s legal framework (which offers some details about the parliament’s operations and prerogatives) is unchanged—it is simply not clear what would happen if the new parliament in September decided to bring down (or even question) a minister, for example.

The declaration is very selective in retaining other structures from Egypt’s constitutional order. The SCAF, for instance, was careful to ensure that the 1971 constitution’s provision for the National Security Council was retained, perhaps mindful that this would allow the military some voice in security affairs after it returns to the barracks. But any reference to Egypt’s regional councils was omitted. Does this mean that local councils in Egypt’s administrative districts no longer exist or that they should just continue their work, ignoring the removal of their constitutional basis?

The declaration does protect the SCAF’s transitional role as a legitimate and indeed constitutional actor. Article 56 provides a list of its duties, which include lawmaking, representing the nation at home and abroad, and appointing and dismissing ministers and the prime minister. The powers of the SCAF will last through the parliamentary elections and until a new president is elected and sworn into office.

Next Steps in the Transition to Civilian Rule

The declaration adds more details about the timeframe to complete the transition beyond what was specified in the referendum. The process for electing members of both houses of parliament should begin within six months from the date of the issuance of the declaration, meaning by the end of September 2011.

While both houses contain members appointed by the president, in the case of the People’s Assembly, the declaration provides that the SCAF will act as the president in making the appointments. For the Consultative Council, the declaration does not delegate this task to the SCAF but rather states that the two-thirds of its members who are elected are sufficient to constitute the body, without waiting for the one-third that the president will appoint after presidential elections take place. Since the declaration does not specify a timeline for presidential elections, this provision is necessary to allow the council to begin its work after parliamentary elections, and in particular play its necessary role in the process of preparing the permanent constitution.

In terms of the new constitution to come, the declaration—departing slightly from the language of the referendum—has some clear provisions, but it does not answer all questions. While the SCAF has repeatedly affirmed that the process will consist of parliamentary elections, then presidential elections, and only then the drafting of a new constitution, the declaration leaves some ambiguity about when the presidential elections should take place. Article 60 instructs the SCAF to convene a joint assembly of the elected—and not the appointed—members of both houses within six months of their election. This joint assembly will then elect (not “select,” as the referendum stated) a 100-member committee to prepare a new constitution for Egypt, a process it should complete within six months. The draft constitution will then go to voters in a referendum.

It has largely been assumed in Egypt that the parliament and the president would be in place for the entire constitutional drafting process. Once the drafters have been elected, there is no formal role for the parliament (or the president) to play in drafting the new document. But if a strong and forceful president is in office—or if the parliament elects many of its own members to the drafting body (or designated members of movements that also have a strong parliamentary presence)—the president or members of parliament could informally shape the process in many ways. This concerned some of the referendum’s opponents, who objected to the undue influence that the first parliament and president could have over the constitution’s drafting. As a result, all aspects of the process, beginning with the formation of 100-member committee, will be watched very closely.

Conclusions

At some point just before the referendum, the SCAF clearly realized that the 1971 constitution—even amended—could not adequately provide for the details of the transition period. It also must have recognized, as referendum opponents had urged, that some aspects of the 1971 constitution were not suitable for the transition period. Caught in a position where the referendum was already in motion, the SCAF took the contents of the referendum, modified some aspects of it as it saw fit, selected other provisions from the 1971 constitution, again modified them as it wanted, and put the whole package together as the constitutional declaration.

The result is a document with significant procedural and substantive inconsistencies and even incoherencies. Its existence does not mean that the fundamental issues for the transition process have been resolved. To the contrary, many more decisions will need to be made in the coming months, and language in the constitutional declaration might even require modification and revision. Egypt’s constitutional process is clearly still in the beginning stages.

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About the Middle East Program

The Carnegie Middle East Program combines in-depth local knowledge with incisive comparative analysis to examine economic, sociopolitical, and strategic interests in the Arab world. Through detailed country studies and the exploration of key crosscutting themes, the Carnegie Middle East Program, in coordination with the Carnegie Middle East Center in Beirut, provides analysis and recommendations in both English and Arabic that are deeply informed by knowledge and views from the region. The program has special expertise in political reform and Islamist participation in pluralistic politics.